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Those Who Invoke International Law Must Submit to It

If the second week of September, 2004, is remembered at the United Nations as the week U.N. Secretary General Kofi Annan finally came right out and said it—that the Iraq War was “illegal”—the third week will be recalled for two speeches to the General Assembly highlighting differing perceptions of international law: President Bush’s full-dress defense of America’s decision for war, and the Secretary General’s address placing the issue in a larger context. “Those who seek to bestow legitimacy,” the Secretary General reminded the world, “must themselves embody it, and those who invoke international law must themselves submit to it.”

Was the Iraq War illegal? Does it matter? Two provisions of the U.N. Charter are primarily involved. Article 2, Section 4, obligates U.N. members to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” Article 51, the so-called “Pearl Harbor” clause, provides sole exception: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”

It has always been the official position of the government of the United States that this nation faithfully observes both provisions. Whether or not President Bush, his chief advisors, or most Americans actually believe that, it is important to grasp the official argument: that international law does matter, and we do abide by it. In the case of Iraq, our government’s position is that the war was fully justified under Article 51; and this in turn has sparked the first real debate about the meaning of Article 51, and the first significant attempt to clarify its application, in the nearly sixty years since the U.N. Charter first came into force in 1945.

An international consensus has evolved on the meaning of the reference to “armed attack” in Article 51: that the attack need not actually have occurred, but it does have to be an attack that is about to happen. Hence the administration’s extensive attempts to prove that Saddam Hussein had stockpiled weapons of mass destruction in sufficient quantity to threaten members of the United Nations generally. But no U.S. administration until President Bush’s has argued that the imminence of the possible attack need not be immediate—that “preemptive war” is justifiable under Article 51 if the threat is “clear and present”.

Nor does the wording of Article 51 make it clear whether the United Nations or the nation facing a perceived threat is to decide its imminence. The position of our government has always been that the nation in danger is necessarily the judge, not only of the reality of its peril, but also of when measures the Security Council has taken to confront the threat are effective. In addressing the General Assembly, President Bush quoted from the initial Security Council warning to Saddam Hussein in November, 2002, that Saddam must comply with inspection and other requirements or face “the most serious consequences,” arguing that the United States was simply implementing this resolution in making war the following March, despite the inability of the U.S. to muster support for a second resolution specifically authorizing invasion.

So a principal mandate of the Secretary General’s High Level Panel on Threats, Challenges and Change, which will deliver its formal report this December, is to propose an acceptable consensus on the meaning of Article 51, as part of an over-all perspective for clarifying the obligations of nations under the U.N. Charter and for restructuring the U.N. to do the work this century will require of it.

But how can the Charter be enforced in actuality on a nation as powerful as the United States? The ultimate solution lies in our own Constitution—in the last of three of its famed “elastic clauses,” each with the potential to redefin the constitutional obligations of our government.

Two of the three have already been re-stretched—the first in the 1930's, when the Supreme Court abandoned a half-century of hair-spliting over Article I, Section 8 and stopped ruling Franklin Roosevelt’s New Deal unconstitutional. The second took on its present meaning in the 1950s and ‘60s, when the limitations on civil rights and liberties historically read into the 14th Amendment were similarly swept aside.

The third “elastic clause” gives our international obligations constitutional force. Article VI provides that “Treaties made under the authority of the United States are the supreme law of the land, and the judges in every state shall be bound thereby.” Taking it literally at long last may come too late to do America’s Indians or certain others in our past much good, but it is ultimately the only way international law can be effectively enforced on our own officials in our own courts—once we decide as a people, as we finally did with Article I, Section 8, and the 14th Amendment, that the language involved simply means what it says, and it is time we began living by it.

Professor Jim Stanbery is a history professor at Los Angeles Harbor college and President of the UN Association for Southern California. He previously ran for Los Angeles City Council.

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